How many days off work is too many?

We are regularly asked to provide advice to employers about their ability to terminate the employment of an employee who has an unsatisfactory work attendance record.  This can be a complex issue, as the reasons for non-attendance may involve an actionable workplace right.

A recent decision[1] in the Fair Work Commission (Commission) has addressed this issue and provides valuable insights and lessons for employers considering termination on this basis.

In the case, the Commission was asked to determine if the termination of employment of a long-term employee of Woolworths Group Limited (Woolworths), Mr Anthony Clark (Mr Clark), was unfair. 

Relevant facts of the case

Mr Clark was employed by Woolworths in a warehouse role, based in Mulgrave, Melbourne.  He had been continuously employed for more than 20 years. 

Woolworths terminated Mr Clark’s employment on the basis of both his persistent absenteeism, and his failure to comply with repeated lawful and reasonable directions to notify the company of his absences and to provide satisfactory supporting evidence for them.  Woolworths argued that Mr Clark was not meeting the inherent requirements of a full-time worker.

From 2022 onward, Mr Clark’s employment history included the following notable events:

• He had numerous absences from work due to poor health and issues related to his son’s drug addiction.
• In October 2022, May 2023, and August 2024, Mr Clark received written directions to provide notice of and evidence for his absences with warnings that failure to comply could result in disciplinary action.  On many occasions, he did not follow these directions.
• In mid-February 2025, Mr Clark was given another direction to give notice and evidence for absences, with a warning that failure to comply could result in dismissal.
• Between mid-February 2025 and early April 2025, Mr Clark was absent multiple times without providing any notice or evidence.  
• On 7 April 2025, Woolworths put to Mr Clark that despite recently being certified fit for work, he was not meeting the inherent requirements of his role.  They did not mention his failure to follow directions or of the warning from mid-February 2025.  Mr Clark responded by stating that his health had improved and that he was committed to doing better, asking for another chance.
• On 16 April 2025, Woolworths dismissed Mr Clark on the grounds that he was not meeting the inherent requirements of his role.

Mr Clark had a total of 92 absences from work in the 12 months leading up to April 2025.

He submitted that there was no valid reason for his dismissal because, contrary to Woolworths’ assertion at the time of the termination of his employment, he was capable of meeting the inherent requirements of his role.

Deputy President Coleman (DP Coleman) found that Woolworths had two valid reasons for dismissing Mr Clark. 

1. The first was that he was not meeting the inherent requirements of his role as a full-time team member.  It is an inherent requirement of full-time storemen to physically attend work and he was not meeting this requirement. Also, Mr Clark had exhausted his paid personal leave and his absences were continuing.
2. The second valid reason for dismissal was that Mr Clark had repeatedly failed to follow Woolworth’s directions to provide notice of his absences from work, and appropriate supporting evidence to substantiate the reason for the absence, such as a statutory declaration or medical certificate.  DP Coleman found that the directions that were issued to Mr Clark in October 2022, May 2023, August 2024, and February 2025 were lawful and reasonable, and Mr Clark’s failure to comply, especially after the warning on 12 February 2025, was a valid reason for dismissal related to his conduct.

After consideration of other relevant factors, including Mr Clark’s long service and age, DP Coleman concluded the dismissal was not unfair.

Valuable insights and lessons for employers

There are a number of insights and lessons for employers that can be taken from the decision. 

Firstly, it is possible to address persistent absence from work, including by way of termination of employment.  While it may not be necessary to wait for 92 absences in a year, a consistent pattern of absences that prevents a full-time employee from complying with attendance requirements can warrant action. 

Secondly, the process for managing this issue needs to be supported by evidence, such as records of non-attendance, and by issuing appropriately worded directions to the employee.  This is particularly crucial when the employee fails to notify their employer of absences or does not provide evidence to justify them.

Thirdly, it is generally preferable to ‘hasten slowly’ when dealing with this issue.  As stated by DP Coleman in his decision, ‘on no view was Woolworths hasty in taking disciplinary action.’  This serves as a useful reminder of the importance of allowing sufficient time to ensure the process is fair.

However, this decision should not be interpreted as a ‘green light’ to justify the termination of the employment of any employee who has attendance issues.  Each case should be evaluated on its specific facts and circumstances, and it can be beneficial to seek advice from an employment law expert in such situations.

[1]     Anthony Clark v Woolworths Group Limited [2025] FWC 2226 (30 July 2025)